R Ats. Thorpe v Molyneaux

JudgeCarberry, J.A.
Judgment Date31 January 1979
Neutral CitationJM 1979 CA 2
Docket NumberCriminal Appeal No. 163 of 1977
CourtCourt of Appeal (Jamaica)
Date31 January 1979

Court of Appeal

Zacca, P.; (Ag) Melville, J.A.; Carberry, J.A.

Criminal Appeal No. 163 of 1977

Regina Ats. Thorpe

Mr. W.B. Frankson and Mr. F. Hamaty for the complainant-appellant.

Mr. F.M.G. Phipps, Q.C. and Mr. Michael Marsh for the defendant-respondent.

Mr. M. McIntosh, watching, for the Crown.

Family Law - Paternity — Corroboration.

Carberry, J.A.

We heard this appeal on May 15, 16, 17, 18 and 19, when we allowed the appeal, set aside the order of the Resident Magistrate and adjudged the respondent to be the putative father of the two children involved, and ordered that he do pay the weekly sum of $20.00 for each child commencing from the 18 th August, 1977 until such child attain the age of eighteen years. Costs of the appeal were fixed at $50.00 to the appellant. We promised to put our reasons in writing and now do so.


On the 22 nd June, 1976, the complainant-appellant, Daphne Thorpe gave birth to twin boys, named Damon Omar and Dean St. Aubyn. They were delivered by caesarean section. She alleges that the defendant-respondent, Dr. Eustace Molyneaux, is the father of these two children, and as such liable for their support. The defendant-respondent denies that the children are his: he does not suggest that their mother associated with any other man apart from the obvious inference that is they are not his children thenthey must belong to or have been fathered by some other person.


The complainant was at the material time a divorcee; she got her decree absolute on the 25 th April, 1975. She has two children by her previous marriage, and at the time of the conception of the twins these children were living with her at Granville, St. James.


The complainant is by profession a secretary, and was employed as secretary to a team of surgeons at the Cornwall Regional Hospital, in Montego Bay in the parish of St. James. The defendant Dr. Molyneaux was a member of that team and she met him in June 1975. She had had gynaecological problems, was admitted to the hospital in July, and the respondent was one of the doctors who treated her.


The complainant's evidence was to the effect that their acquaintance deepened into friendship and ultimately became intimate. He sometimes took her home from work, and on the 15th October, 1975, she says that having been taken by him to her home she returned with the defendant flat or apartment at the Pamco hotel where sexual intercourse took place between them. They used no contraceptives.


Some few weeks later complainant stated that she felt that she had become pregnant and told the defendant so. He said that she should have a pregnancy test, she took one, and at that stage it proved negative. This was now in November. She went to tell him of the result of these tests and intercourse again took place between them in the second or third week of November.


Some time later on she became convinced she had become pregnant: he suggested abortion which she refused, and their friendship cooled. They ceased to be on speaking terms. The defendant had not contributed anything towards the support of the twins. He had denied paternity.


The complainant brought two complaints (one for each twin) against the defendant in the Resident Magistrate's Court for St. James, held at Montego Bay. They were information numbers 9325 and 9326/1976. They were laid on 24th November, 1976 and they were heard on the 24 th February 1977, before His Honour Mr. W.L. Morris, Actg. Resident Magistrate for St. James. This was her first application. She did not on this occasion herself bring any supporting witnesses, though Section 5(1) of the Affiliation Act requires that “the evidence of the complainant be corroborated in some material particular by other evidence to the satisfaction of the Resident Magistrate”. She was cross-examined and denied the suggestion that she had ever had sexual relations with any other man since August of 1975.


At the end of her evidence the defendant himself gave evidence. He admitted having had sexual intercourse, with the complainant on two occasions, the first of which he put as being on the 15th November, 1975: he admitted having been told by her that she was pregnant as a result thereof, but denied in effect that she could possibly have discovered this so close to the date on which he admitted having had intercourse. If she had these symptoms at that time, they indicated to him that she must have already been pregnant for someone else before he had intercourse with her. It appears that the defendant had been called into the witness box by the complainant: this is permissible. After he had given evidence there were very short addresses, and the Resident Magistrate for St. James dismissed the complaint “for want of corroboration”. This appears both in the Notes of the evidence taken first hearing, and on the back of the two informations where the results of the trial are formally recorded.


The Resident Magistrate for St. James was wrong in point of law. If he believed the complainant, then the evidence provided by the defendant was in law capable of amounting to corroboration. Although the defendant purported to say that he could not be the father it has been clear since the case of Simpson v. Collinson [1964] 2 Q.B. 80; [1964] 1 All E.R. 262 that an admission by a man against whom an affiliation order is sought that he had sexual intercourse with the applicant mother within two to four months of the conception of her child is capable of being “corroboration in some material particular” of the complainant's allegation that he is the father. This was a decision of the Court of Appeal in England, over-ruling the Queen's Bench Divisional Court and the decision of the Lord Chief Justice therein. The acting Resident Magistrate when he erred, erred in good company, but apparently and unfortunately he was not aware of the decision above, nor of the fact that it has been cited in and accepted as good law in our own Court of Appeal: see Gladys Gilpin v. Joseph Allen (1966) 4 G.L.R. 184; Veronica Taylor v. Robert Chambers (1965) 5 G.L.R. 184.


It was conceded in argument before us by counsel for the respondent that had the complainant chosen to appeal the respondent probably could not have held his judgment.


The complainant however did not appeal. Instead she brought a second or fresh application. Having moved to the adjoining parish of Westmoreland, she filed two new complaints on the 11th May, 1977, alleging that the defendant was the father of the twins and seeking an affiliation order against him from the Resident Magistrate for the parish of Westmoreland. These applications were made within the period of one year from the birth of the children (22nd June, 1976). The defendant worked in the parish and she resided therein, and no question of jurisdiction arises on either score.


These two informations Nos. 2465 and 2466/1977 (Westmoreland) came on to be heard by His Hon. Mr. B.H.B. Reid, the Resident Magistrate for Westmoreland on the 9th day of August, 1977. The complainant had new attorneys but the defendant retained his former attorney-at-law.


The complainant's evidence was a little fuller, but to the same effect as her previous evidence which has been narrated above. On this occasion however she called additional evidence by way of corroboration which she had not done at the first hearing. She stated that on the first night that she and the defendant had had sexual intercourse on the 15th October, 1975, she had left her two small children with a neighbour, Hepsilda Brown, and she had also done this on the second occasion, in November 1975. She called Hepsilda Brown as a witness, and claimed that that lady had been introduced by her to the defendant. She also called as a witness doctor who made the pregnancy test and later delivered the twins by caesarean section. She also produced her hospital dockett. In cross-examination the complainant admitted the previous hearing and its result, namely that at that hearing she had not had any witnesses of her own and the case had been dismissed for want of corroboration.


Hepsilda Brown in her evidence stated that she was a neighbour of the complainant, and had noticed the defendant driving the complainant home from work, and that he had been introduced to her. On two occasions one in October and the other November, 1975, complainant had asked her to look after the two children and brought them to her to stay the night.


Dr. Vasanthi Duvur, the complainant's doctor, gave evidence as to having conducted a pregnancy test for her in November, 1975. It proved negative. False negatives were rare, though false positives were frequent. He examined her again in February 1976, when she gave the date of her last period as 6th October (1975), and thought she was 2 weeks pregnant, though this might be an overestimate as she then had fibroids in the uterus, which might have exaggerated the extent of the pregnancy as might the fact that she was having twins. The expected delivery date was 13th July, 1976, but the actual date was on 22 nd June, 1976 by caesarean section. Cross-examined the doctor expressed the view that the first signs of pregnancy usually occurred 26 days after intercourse resulting in conception.


The complainant having closed her case, the defendant's attorney raised two points: (a) that the matter was concluded by the result of the earlier hearing, the notes of evidence of which were by consent admitted in evidence in this case. The defendant relied on Elliot v. Elliot (1945) 4 J.L.R. 244; the defendant also took an additional point (b) that the new evidence offered at the second hearing had not been shown to be evidence not available at the first hearing.


The case continued next day, and the defendant offered medical evidence which suggested that symptoms of pregnancy would...

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